Date of Filing : 20-01-2017 Date of Final Order : 17-11-2017
Smt. Runa Ganguly, Member
The present complaint has been filed by the Complainant U/S 12 of C.P. Act 1986. The factual matrix of the case as can be gathered from the case record is that the Maruti Omni MPI Ambulance vide Registration No. WB-63/8369 belongs to Ritari Health Care Pvt. Ltd., Cooch Behar i.e. the Complainant used for carrying patients of the said nursing home. The said Ambulance was insured with the O.P. No.1, ICICI Lombard GIC Ltd. vide Insurance Policy No.3008/MI-03023700/00/000 valid from 09/09/2015 to 08/09/2016 which was subsequently renewed upto 08/09/2017.
On 05/08/2016 the said Ambulance was kept stationery and parked in front of the nursing home while the said Ambulance met an accident and got damaged. At that time the said Ambulance was not plying or was not in use. Accordingly, the said Ambulance was entrusted to the O.P. No.2, Sevoke Motors Pvt. Ltd., Siliguri along with the copy of the Insurance Policy and the O.P. No.2 assured that they would repair the Ambulance and recover the cost of repairing from the O.P. No.1. Nothing would be required to pay by the Complainant. After repairing the Ambulance would be delivered to the Complainant on cashless basis. The O.P. No.2 prepared a Job Card Retail Invoice dated 01/09/2016 for Rs.45,679/- addressing the O.P. No.1 Insurance Company and the copies of the same was forwarded to the Complainant through e-mail. On 21/09/2016 by an e-mail, the Complainant was asked to submit Registration Certificate and Fitness Certificate of the Ambulance for cashless facility. Accordingly, the Complainant submitted the said Certificates valid up to 26/10/2017 to the O.Ps but neither the O.Ps rendered cashless facility. On 26/10/2016 after repairing, the O.P. No.2 delivered the said Ambulance to the Complainant by demanding amount of Rs.45,679/- from the Complainant due to the reason best known to him and the Complainant was compelled to pay a sum of Rs.45,679/- to the O.P. No.2 and took delivery the Ambulance. Thereafter, the Complainant pursued the matter with the O.Ps for re-imbursement of said amount of Rs Rs.45,679/- but to no effect.
Due to non-payment of said claim amount and/or non-rendering of cashless facility, the Complainant has suffered both mentally and financially. Thus, the O.Ps adopted deficiency in service & unfair trade practice.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to pay Rs.90,000/- as compensation for mental pain & agony, principal amount of Bill No.2214 dated 26/10/2016 and litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
In the present case the O.P. No.1 appeared through Ld. Agent and contested the case. The O.P. by filing W/V contending inter-alia that the present case is not maintainable before this Forum in its present form as well as in law also barred by law of limitation. The main contention of the O.P. No. 1 is that this O.P. never received any copy of the record or report of alleged accident from any police station also nor any information from the owner of the vehicle. This answering O.P. contended that the vehicle of the Complainant insured with ICICI Lombard at its Siliguri Office vide Policy No.3008/MI-03023700/00/000. Thus, the present case is suffering from lack of local jurisdiction.
The further contention of this O.P. is that the Complainant alleged that the vehicle met an accident on 05.08.2016 but informed this O.P through the O.P. No. 2 on 01.09.2016 i.e. after elapse of reasonable time for claim. Further the Complainant did not supply the proper documents which were essential for settling the claim. This O.P after receiving the claim information in respect of the vehicle bearing No. WB-63/8369 appointed one surveyor for assessing the loss and on 25.10.2016 sent a letter to the insured for supplying Fitness Certificate & Registration Certificate for settling the claim. The O.P. No.1 again sent a reminder on 25.10.2016 asking for the above documents and after receiving the documents it appears that the Fitness Certificate was not valid. The surveyor also reported that “claim not admissible due to fitness certificate is not valid at the time of accident”. Thereafter, as per Survey report this answering O.P repudiated the claim of the Complainant and sent letters in this regard on 31.12.2016 & 02.01.2017. The Complainant has filed this case only to squeeze money from the O.P.
By putting all the above this O.P. claimed that it has no deficiency in service and prayed for dismissal of this case with cost.
In the present case the O.P. No. 2 did not appear before this Forum despite receiving the notice. Hence, this case proceeded ex-parte against the O.P. No. 2.
In the light of the contention of both parties, the following moot points necessarily came up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service as alleged by the Complainant? If so, are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs, as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the documents of the Complainant and other materials on record and heard the argument advanced by the agents of the parties at length. Perused also the Evidence on affidavit, W/Ar. of the Complainant and the Opposite Party No.1.
Point No.1.
Rithari Health care is a Nursing Home and Dr. T. Paul is the Director of the said Nursing Home. The Complainant is owner of the Vehicle, Maruti Omni MPI Ambulance vide Registration No. WB-63/8369. The said vehicle has been used for carrying patient as stated by the Complainant in complaint as well as in Evidence on affidavit. The vehicle in question is completely are in using for commercial purpose and the Registration Number of the vehicle is also commercial one.
As per section 2 (1) (d) (ii) of Consumer Protection Act “Consumer “means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who buys such goods for consideration paid or promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or “commercial purpose”;
In the case in hand the Complainant purchased the vehicle for his Nursing Home, which is not a charitable Hospital. Further, nowhere in the plaint it reveals that the Complainant purchased the same for earning his livelihood by means of self employment. It is already settled in so many decisions of Hon’ble Supreme Court & of National Commission; such as Laxhmi Engenieering Works vs. P.S.G. Industrial Institute, (1995)3 SCC583 and Harsolia Motors vs. National Insurance Co. Ltd., 1 (2005) CPJ 27 (NC) that “for any commercial purpose” it would mean that if goods are purchased or services are hired or availed for an activity, directly intended to generate profits, it will not fall within the ambit of the word “consumer”.
In our considered opinion as the Complainant used the vehicle in question for commercial purpose i. e. for smoothly running the Nursing Home and also for earning profit he /it be not entitled to the benefits of the Consumer Protection Act on the sole ground that he/it is not a Consumer. Thus, this complaint is not maintainable before this Forum.
Point No.2.
The complaint value of the present case is far less than the prescribed limit of Rs. 20,00000/-. The vehicle in question was insured with the O.P. No. 1, and the O.P. No.1 is carrying on business within the territorial jurisdiction of this Forum. Thus, no dispute appears on this point.
Point Nos.3 & 4.
We have already decided that the Complaint case is not maintainable as the Complainant is not a Consumer. In the circumstances, we find no justification to go into the merit on Point Nos.3 & 4.
For the aforesaid reasons, we compel to hold that the present case is liable to be dismissed.
Accordingly, the complaint fails.
Hence ,
it is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the O.P.No.1 without cost and dismissed ex-parte against the rest without cost.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
